Menu icon Access the Business Officer Magazine menu by clicking or touching here.
Colorado Lawyer Magazine logo, click or touch this logo to return to the homepage Click or touch the Colorado Lawyer Magazine logo to return to the homepage. Search

United States v. Morales-Lopez.

No. 22-4074. 2/9/2024. D.Utah. Judge Baldock. 18 USC § 922(g)(3)—Unlawful User of a Controlled Substance—Fifth Amendment Due Process Clause—Facial Challenge—As-Applied Challenge.

February 9, 2024

Morales-Lopez was convicted of violating 18 USC § 922(g), which, as relevant here, forbids an “an unlawful user” of a controlled substance from possessing a firearm. Morales moved post-trial to dismiss the charge on the ground that it violated the Fifth Amendment’s Due Process Clause. The district court granted the motion, concluding that the phrase “unlawful user” in § 922(g)(3) was unconstitutionally vague on its face and as applied to the facts underlying Morales’s conviction.

The government appealed. Because the district court granted Morales’s motion to dismiss as a matter of law upon an uncontested trial record, the Tenth Circuit reviewed both its constitutional rulings de novo. As to the facial challenge, under US Supreme Court precedent, the general rule is that a defendant whose conduct is clearly prohibited by a statute cannot bring a facial challenge to the statute while ignoring his own conduct. Here, the district court erred when it considered Morales’s facial challenge to § 922(g)(3) based on its opinion that the Supreme Court in Johnson v. United States, 576 U.S. 591 (2015), changed the traditional rule by “allow[ing] a defendant to bring a facial challenge without regard to the particular facts of his case.” Rather, Johnson held that the residual clause of the Armed Career Criminal Act, 18 USC § 924(e)(2)(B), specifically its definition of a “violent felony,” was unconstitutionally vague for the purpose of sentencing enhancement. Neither Johnson nor its progeny can reasonably be read to support the district court’s conclusion. Therefore, the district court erred in considering whether § 922(g)(3) was unconstitutional on its face.

Regarding the as-applied challenge, the district court recognized it need not reach this challenge after ruling that the statute was unconstitutionally vague on its face. But the court then explained that were it forced to review an as-applied challenge to § 922(g)(3), it would find the statute vague as applied to Morales’s conduct because that section “does not provide adequately clear notice to an ordinary person that possessing a gun five weeks after using drugs is prohibited conduct.” The district court’s analysis assumed that the government presented no evidence that Morales actually used drugs during the five weeks before his arrest. However, the government introduced sufficient evidence of the requisite temporal nexus between Morales’s drug use and firearm possession, and § 922(g)(3)’s phrase “unlawful user of . . . any controlled substance” clearly applies to his conduct. Accordingly, the district court erred in determining that § 922(g)(3) was unconstitutional as applied to Morales’s criminal conduct.

The judgment dismissing the § 922(g)(3) charge against Morales as violative of the Fifth Amendment’s Due Process Clause was reversed and the matter was remanded to the district court with instructions to reinstate the jury’s verdict and proceed accordingly.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

Back to the From the Courts Page